[council] Response to GNSO Council resolution on Post-Expiration Domain Name Recovery Issues Report

[Marika Konings <marika.konings@xxxxxxxxx>]

Dear All,

Please find below ICANN staff's response to the questions outlined in the 
motion that was adopted by the GNSO Council on 18 December 2008 on the 
Post-Expiration Domain Name Recovery Issues report 
(https://st.icann.org/gnso-council/index.cgi?18_dec_2008_motions).

With best regards,

Marika

=====================

ICANN Staff is asked to provide clarification no later than 15 January 2009 on 
the following from the Issues Report:

1.    In Section 4.2, in reference to the last bullet on page 15 regarding "how 
best to enable the transfer of a domain name in RGP", the continuation of the 
same paragraph on page 16 reads, "On the latter point, the GNSO Council might 
want to consider whether this should be investigated in the context of the 
upcoming Inter-Registrar Transfer Policy PDP C, 'IRTP Operational Rules 
Enhancements'."

* Is it recommended that this would be added to the requirements for IRTP PDP C?

As the issue of whether or not to allow the transfer of a domain name in RGP 
directly relates to the Inter-Registrar Transfer Policy, ICANN staff deems it 
appropriate for the GNSO Council to consider whether this issue can be included 
in one of the upcoming PDPs in this area. As noted by the Technical Steering 
Group (http://www.icann.org/en/meetings/bucharest/redemption-topic.htm) that 
developed an RGP implementation proposal, 'allowing registrants to choose the 
redeeming registrar will introduce numerous technical and operational 
complications into the system', which staff thinks might be best dealt with in 
the context of the inter-registrar transfer policy. From the upcoming IRTP 
PDPs, PDP C (operational rule enhancements) seems to be best suited to 
potentially deal with this issue. The issue of whether or not to allow the 
transfer of a domain name in RGP could also be considered as part of an overall 
PDP dealing with other post-expiration domain name recovery issues. However, in 
consideration of the above, ICANN staff recommends that the GNSO Council 
consider the issue in one of the already foreseen IRTP PDPs, most logically 
IRTP PDP C.

* What action items might be needed to accomplish this recommendation?

The GNSO Council would need to adopt a motion stating that it would like to see 
this issue addressed in one of the upcoming IRTP PDPs. Following the adoption 
of this motion, the charter for the IRTP PDP that deals with this issue would 
contain text to reflect this decision to add this specific issue to that PDP.

* What changes would need to be made to IRTP PDP C?

This issue would be included in the Charter for the relevant Working Group, 
when drafted.

2.    In the last paragraph of Section 4.2 on page 16, Staff recommends ". . . 
the GNSO Council could consider enhancements, which would highlight more 
clearly and visibly the provisions of the contract in relation to auto-renew 
and expiration policies. It should be noted that ICANN staff does not recommend 
that this be included in a PDP . . ."

* How is it envisioned that this would happen if not via a PDP?

Compliance efforts in combination with information and educational activities 
might be considered in this context. It should be noted that such actions would 
not necessarily require Council action. For example, ICANN's compliance 
department currently organizes educational workshops in conjunction with ICANN 
meetings at which information provision requirements incorporated in the RAA 
relevant to this topic could be included as a topic of discussion. Furthermore 
the Compliance team is currently conducting an audit as part of its 2009 audit 
schedule regarding the registrar requirement to have deletion and renewal 
policies clearly displayed on registrar websites. In addition, a workshop with 
interested parties such as the ALAC and registrars could be considered to 
discuss potential enhancements and/or educational initiatives. Another avenue 
to be explored, as noted by a previous Chair of the GNSO Council could be that 
'perhaps ICANN and the GNSO can assist with providing authoritative information 
on the policies and processes of domain name registration to these [consumer 
protection] organisations'.

* What action items might be needed to accomplish this recommendation?

As noted above, the activities described do not necessarily require Council 
action. ICANN's Compliance team has already commenced some of above referenced 
work and further discussions are being held internally to determine the best 
way to conduct educational sessions relevant to registrar requirements 
concerning deletion and renewal policies.

3.    Section 3.7.5 of ICANN's Registrar Accreditation Agreement, as quoted on 
page 28, says, "At the conclusion of the registration period, failure by or on 
behalf of the Registered Name Holder to consent that the registration be 
renewed within the time specified in a second notice or reminder shall, in the 
absence of extenuating circumstances, result in cancellation of the 
registration by the end of the auto-renew grace period (although Registrar may 
choose to cancel the name earlier)."

* Is this requirement being enforced? If not, why not?

Yes, this requirement is consistently enforced. The ICANN Compliance Department 
investigates all complaints that are received with regard to the 
non-cancellation of the registration if the Registered Name Holder or someone 
acting on behalf of the Registered Name Holder does not renew the registration. 
It should be noted that there have been complaints that turned out to be 
unfounded, as many registration agreements contain provisions in which the 
Registered Name Holder consents to someone acting on behalf of the Registered 
Name Holder to renew the registration, an issue that has also been outlined in 
the Issues Report in further detail.

* Under this policy, wouldn't registrars be required to cancel (delete) a 
registration, in the absence of extenuating circumstances as defined in this 
section, if a Registered Name Holder does not consent to renewal?

If not, why not?

The above statement is not completely correct. Registrars are required to 
delete a registration, in the absence of extenuating circumstances as defined 
in the RAA, if a Registered Name Holder or someone acting on behalf of the 
Registered Name Holder does not consent to renewal. In this context it might be 
worth pointing to an advisory that ICANN published in 2004 to make the 
community aware of modifications that many registrars have made in registration 
agreements that result in the registrar obtaining the consent of the registrant 
to auction and/or transfer a domain name registration to a third party if the 
Registered Name Holder does not renew his/her registration. See 
http://www.icann.org/en/announcements/announcement-21sep04-1.htm for further 
details.

4.    Section 3.7.5.3 on page 29 reads, "In the absence of extenuating 
circumstances (as defined in Section 3.7.5.1 above), a domain name must be 
deleted within 45 days of either the registrar or the registrant terminating a 
registration agreement."

* Is this requirement being enforced? If not, why not?

Yes, this requirement is being enforced. However as noted before, this only 
applies if the registration is not renewed by the Registered Name Holder or 
someone acting on behalf of the Registered Name Holder.

* Under this policy, wouldn't registrars be required to cancel (delete) a 
registration, in the absence of extenuating circumstances as defined in this 
section, if a Registered Name Holder or the Registrar terminates a registration 
agreement?

If not, why not?

In the case of termination of a registration agreement, the respective 
registration agreement would need to be analyzed in order to determine which 
conditions apply. The Expired Domain Deletion Policy only applies to expired 
domain names.